A Duty To Be Competent in E-Discovery? California Says Yes

By Robert Ambrogi on August 7, 2015

Ever since 2012, when the American Bar Association amended the Model Rules of Professional Conduct to say that lawyers have a duty to be competent in technology, there has been debate over just how far that duty extends.

In a decision that could be a harbinger of how other states will rule, the State Bar of California has now said that lawyers who handle litigation have an ethical duty to be competent in e-discovery or associate with others who have that competence.

The opinion, issued June 30, finalizes a proposed opinion that the bar put out for public comment earlier this year.

What strikes me as most significant about this is that many lawyers — including litigators — remain woefully naive about e-discovery. But as this opinion points out, these days e-discovery can come up in almost every litigation matter. Competence therefore requires that attorneys have at least a baseline understanding of it.

I have a full write-up on the opinion at the Catalyst E-Discovery Search Blog. I also wrote there last February about the proposed opinion. I also created a redlined version showing the changes from the proposed opinion to the final opinion.